Brough v Law & Anor

Under the old child-support scheme, a maintenance assessment does not automatically cease merely because parents resume living together for a short period. Paragraph 16(1)(b) of Schedule 1 to the Child Support Act 1991 concerns a lasting loss of the child’s statutory status as a qualifying child. It must be read with paragraph 16 as a whole. A construction producing immediate termination would undermine paragraph 16(1)(d), which expressly provides for six months’ continuous cohabitation, and paragraph 16(6), which permits cancellation on application. During short cohabitation, the absent-parent duty to make payments does not operate, but the assessment survives and the duty resumes when separation restores the statutory status.

Mr Brough appealed against the decision of the Upper Tribunal (Administrative Appeals Chamber), dated 11 December 2009, which allowed Ms Law’s appeal from an Appeal Tribunal decision. The original tribunal had upheld cancellation of a child-support maintenance assessment, subject to amending the effective date to 15 September 1999.

The parties had briefly resumed living together with their child between September and November 1999. The central issue was whether that short reconciliation meant that there was no longer a qualifying child under paragraph 16(1)(b) of Schedule 1 to the Child Support Act 1991, automatically terminating the assessment, or whether paragraph 16(1)(d)’s six-month cohabitation period governed termination.

The Court of Appeal unanimously dismissed the appeal. Pill LJ gave the leading judgment. Rimer LJ agreed with both judgments, and Lewison LJ added supporting reasoning.

1. Paragraph 16(1)(b) of Schedule 1 to the Child Support Act 1991 had to be read by reference to the definitions of qualifying child and absent parent in section 3. Those definitions could not be applied mechanically so that every short period of cohabitation permanently terminated an existing assessment.
2. Paragraph 16(1) was to be construed as a coherent whole. The appellant’s construction would make paragraph 16(1)(a) at least partly redundant, make paragraph 16(1)(c) redundant, and undermine paragraph 16(1)(d), which dealt expressly with continuous cohabitation for six months. Paragraph 16(6), requiring an application and satisfaction that the parents were living together before cancellation, reinforced the same conclusion. The maintenance purpose of the Child Support Act 1991 also weighed against permanent loss of support following a short attempted reconciliation.
3. On the agreed analysis, the parent was not an absent parent while cohabitation continued, so the duty under section 1(3) to make periodical payments did not operate during that period. The assessment itself was not extinguished. If cohabitation ended before six months, the parent resumed absent-parent status and the payment duty resumed. Six months’ continuous cohabitation could trigger termination under paragraph 16(1)(d).
4. The court therefore departed from the contrary approach in R(CS) 8/99 and CCS/2332/2006. It did not need to determine the further arguments concerning a fresh application or other possible bases for liability. Lewison LJ entered a caveat that paragraph 16(1)(b) might bear a different meaning in a different statutory context.

The appeal was dismissed.

• Court of Appeal (Civil Division): In [2011] EWCA Civ 1183, the appeal was dismissed.
• Upper Tribunal (Administrative Appeals Chamber): Judge Levenson, on 11 December 2009, allowed Ms Law’s appeal from the Appeal Tribunal’s decision, holding that the short reconciliation did not terminate the maintenance assessment.
• Appeal Tribunal: On 8 April 2008, the tribunal upheld cancellation of the assessment, but amended the effective date to 15 September 1999.